Principles

·  Civil Procedure—Framing of issues—Failure to frame issue not affecting outcome— no ground for revision

A trial court’s failure to frame an issue which does not affect the outcome of the suit is not a sufficient ground for revision.

Judgment

      Advocates: M. Tagalawi……… for applicant

       H. O. Wanni ………for respondent

      H. M. Abul Gasim P.J. April 9, 1964:—Having heard both parties and perused the proceedings, I am satisfied that the findings of the court below are not against the weight of evidence. Respondent’s allegations are substantiated to the effect that he purchased the land in question from applicant in 1942 at £S.0.650 m/ms and erected buildings situated thereon. Applicant did not rectify the register in the name of respondent. About fifteen years later applicant, having been influenced by the fact that the value of the premises has considerably enhanced, demanded that respondent vacate the premises, but respondent rejected the demand in toto.

By a written agreement concluded between the parties, respondent undertook to pay the sum of £S.50 within one year in consideration of registration of the premises in his name and on default of payment to vacate the premises on receipt of the sum of £S.I00 to be paid by applicant as compensation for expenses incurred in erection of the buildings. On July 15, 1961, vide receipt, respondent effected payment of the sum of £S.41.500 m/ms out of the sum of £S.50 leaving an unsettled balance of £S.8.500 rn/ms.

      In my view the learned District Judge misguided himself in improperly framing the issues. Moreover, by virtue of Civil Justice Ordinance, 1929, s. 72 (3), the court has discretion to amend the issues or frame additional issues and may strike out any issues which appear to it to be wrongly framed or introduced. In the circumstances of the case the omission of framing an issue as suggested by applicant’s advocate does not affect the disposal of the suit on the merits.

      “What is the consequence of an omission to frame an issue of fact? The answer depends on the following considerations. If, though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the court, and the court decides the point, as if there was an issue framed on it, the decision will not be set aside in appeal on the ground merely that no issue was framed. The reason is that mere omission to frame an issue is not fatal to the trial of a suit. But if the point denied in the written statement is not tried at all, or, if tried, is tried imperfectly so as to cause failure of justice, the case will on appeal be remanded for a retrial after framing the necessary issue”: I Mulla, Code of Civil Procedure 695 (12th ed., Mitter, I953).

      Accordingly, there are no grounds to warrant disturbing the findings of the court below and therefore this application for revision is dismissed with costs.